Identifying and Advocating Best Practices in the Criminal Justice System. A Texas-Centric Examination of Current Conditions, Reform Initiatives, and Emerging Issues with a Special Emphasis on Capital Punishment.

This symposium will be the culminating event of the American Bar Association’s eight-year endeavor to examine the fairness and accuracy of various death penalty jurisdictions in the United States. The ABA-sponsored analysis of state death penalty laws and processes, known as the “State Assessments,” have produced comprehensive examinations of capital punishment in Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Missouri, Ohio, Pennsylvania, Virginia, Tennessee, and Texas. These states represent 65% of the executions that have taken place in the U.S. in the modern death penalty era. The assessments have had a considerable impact on policy in those states as well as nationwide, and have played an important role in the continuing debate over capital punishment in the United States.

Former U.S. President Jimmy Carter will open our symposium, which will be followed by a series of special issue panels discussing the ABA’s findings in various jurisdictions, recommendations for reform, and implications for the future of the death penalty in America. The symposium’s featured speakers and panelists include ABA President Jim Silkenat, President of the Southern Center for Human Rights Stephen B. Bright, the Honorable Boyce Martin, recently retired from the 6th Circuit Court of Appeals, former Texas Governor Mark White, former Ohio Attorney General Jim Petro and former Virginia Attorney General Mark Earley, journalists Ed Pilkington of the UK’s Guardian newspaper and Brandi Grissom of the Texas Tribune (and many more) will serve as panelists throughout the day as we discuss contemporary problems concerning the use of the death penalty in America, as well as possible solutions to this complex and multi-faceted area of law and policy.

The Symposium is sponsored by the ABA Section of Individual Rights and Responsibilities, ABA Criminal Justice Section, Andrews Kurth, and Sutherland.

Also, the IRR Section has announced that Ron Tabak will be the 2014 recipient of the Section's Father Robert Drinan Award for Distinguished Service in recognition of his outstanding service and commitment. In the words of the Chair, “Your work for over a quarter of a century in death penalty and civil rights litigation and on behalf of death row inmates and due process in death penalty jurisprudence, has enriched this Section with your experience, and honored our profession by your example.”

The award will be presented the evening of Friday, February 7, 2014 in Chicago as part of the ABA’s 2014 Mid-Year Meeting.

The death penalty vs. life without parole and their effects on
victims' families and their communities will be the topic of the 2013
Restorative Justice Conference at Marquette University Law School
Feb. 21-22.

Speakers will include Marilyn Peterson Amour, associate professor in
the School of Social Work at the University of Texas, who co-authored a
2012 study comparing the impact of sentences meted out in Texas and
Minnesota. You can read more on that Marquette Law Review piece here.

The conference explores the effects of both sanctions through the
personal stories of survivors, prosecutors, defense lawyers, victims'
advocates, and judges. The conference is based on a groundbreaking study
by Marilyn Armour of victims' families in Texas (affected by the death
penalty) and Minnesota (affected by life without the possibility of
parole) and the implications of these punishments for healing.

The death penalty. Life without the possibility of parole. These are society's harshest punishments. But how do they affect the victims' families? Is one more healing than the other? Is there ever closure? And what is the ripple effect on the community?

Marquette Law School's Restorative Justice Conference on February 21–22, 2013, will examine the impact of both sanctions through the personal stories of survivors, prosecutors, defense lawyers, victims' advocates, and judges. The conference is based on a groundbreaking study by Marilyn Armour of victims' families in Texas (affected by the death penalty) and Minnesota (affected by life without the possibility of parole) and the implications of these punishments for healing.Cost

There is no fee for the Keynote Kickoff event on Thursday. Friday conference fee is $20 per person (includes continental breakfast and lunch on conference day). Marquette University students and employees may attend at no charge but must, like others, register.

Friday, 18 January 2013

A program commemorating the 50th anniversary of the landmark decision, Gideon v. Wainwright will be live streamed on January 18, 2013. This decision recognized a constitutional right to the appointment of counsel for indigent criminal defendants charged with felonies. Mr. Gideon was in prison when he submitted his handwritten petition to the U.S. Supreme Court requesting counsel.

Speakers include:-- Professor Bruce Jacob, Dean Emeritus and Professor of Law at Stetson University College of Law-- Anthony Graves, Motivational Speaker and Legal Consultant -- Carlos J. Martinez, Miami-Dade Public Defender Moderating will be JoAnne A. Epps, Dean of Temple Beasley School of Law.

Experience this event on your mobile device by downloading the UStream App. Follow the directions below to download the app to your iPad, iPhone, Kindle Fire and other Android devices. Upon downloading the app, simply search the name of the event.

Don’t just watch. Participate! During this event, online participants are encouraged to submit any questions they may have. Some questions will be addressed during the event while others will be provided to the panelist during a 10-15 minute Q&A period at the end of the event. We will attempt to address as many questions as possible during the allotted time period.

"I am humbled by the recognition," Moore said. "I always felt the work that we did was very much a collective effort by members of the committee. To be recognized by my former committee members and the State Bar with this award is indeed a surprise and a humbling experience."

The Michael K. Moore Award for Research and Writing in the Area of Indigent Defense will be presented July 23 in San Antonio during the State Bar of Texas' annual Advanced Criminal Law Course.

Jeff Blackburn, committee chairman, said Moore used his research talents to expose problems in Texas' criminal defense of low-income people.

And:

Allan Butcher, UTA professor emeritus and founding member of the committee, said Moore was enlisted to advise the committee about how to best survey the state of indigent defense in Texas.

The result was, "Muting Gideon's Trumpet: The Crisis in Indigent Criminal Defense in Texas."

Butcher said this work exposed a system in crisis and alludes to the U.S. Supreme Court case Gideon v. Wainwright, which determined that criminal defendants have a right to an attorney when they can't afford one. The report helped lay the foundation for the Fair Defense Act of 2001, which overhauled the legal representation of poor people accused of crimes.

He signed into law a bill passed in haste late on the final night of the legislative session. The elimination of the commission saves $400,000 and gets rid of five positions. It completely eliminates the only clearinghouse for death-penalty case information, the status of court cases of the 397 people on Florida's death row and archival cases on the 69 people Florida has put to death since 1979.

The bill, pushed by House Speaker Dean Cannon, provides for a small part of the commission's duties to be shifted elsewhere, but leaves much else up in the air.

"The Legislature agonized over cutting many worthy programs. And we understand that, in this economy, cuts have to be made," said Roger Maas, executive director of the commission since its 1997 inception. He and his staff will be out of a job at the end of the month.

Lobbying to keep the commission intact and even broaden its work to encompass the full breadth of its original intent failed. One attorney who works on death-penalty cases, however, said the commission won't be missed.

Legal advocates that include former Florida Supreme Court Justice Raul Cantero, a former 5th District Court of Appeal judge from Brevard County and various lawyers with death-penalty agendas called to keep the commission alive, to no avail. Now, the question becomes what it will mean.

"I didn't necessarily shed a tear when they were shut down," said Todd Doss, a Lake City attorney who litigates death-penalty appeals and is a board member of the Florida Association of Criminal Defense Lawyers.

Doss said the comprehensive status reports the commission maintained on state and federal legal appeals were convenient, but not essential. "It doesn't affect what I do."

However, one result could be a paradox, at odds with Cannon's stated desire for death-penalty cases to be tried more efficiently. Cannon said earlier this year the Supreme Court spends a disproportionate amount of time on death-penalty cases and noted that in recent years, more death-row inmates have died of natural causes than by lethal injection.

The end of the commission, in part responsible for continuing legal education required of both lawyers and judges in capital cases, could very well give rise to legal challenges that delay even further carrying out executions.

"That's the irony in the whole thing," said state Rep. Jim Waldman, a Democrat from Coconut Creek and chairman of the now-defunct commission. "It's the opposite of what (Cannon) wants to effectuate by getting rid of this. This is the one commission specifically devoted to dealing with death-penalty issues and the expeditious administration of justice. By doing away with this commission you're saying you're not really concerned with" due process.

And:

Charles Harris, a retired judge at the 5th District Court of Appeal and a member of the commission's board since last year, hoped the commission would become more active and lead a push to consider the efficacy of the death penalty.

"I think the death penalty needs to be reviewed; it needs to be improved," Harris said. "The whole thing is that the public thinks the death penalty is sure and swift. It's not."

"We've got two death sentences," available now, Harris said, referring to execution and life without possibility of release. "It's just that one is a lot more expensive than the other."

Cantero, in a 2005 Supreme Court opinion, urged the Legislature to consider requiring unanimous jury votes to impose the death penalty. That has not happened. The Republican-dominated Legislature has refused reviews of the state's death penalty, including those sought by Cantero, commission board members and a massive American Bar Association study that found inequities in multiple stages of capital cases.

Also:

The commission compiled a listing of those death-row inmates who have exhausted their appeals and are eligible for a death warrant signed by the governor. Such a list was delivered to Scott during his first week in office earlier this year naming 47 ready for execution.

The state Supreme Court reversed a death sentence in a 1988 Pensacola quadruple murder case and then told the lower court Thursday that there is no longer a need to hold a new sentencing hearing, just decide whether Michael Coleman should serve his four life sentences concurrently or consecutively.

That will be the practice from now on when the Supreme Court decides a judge improperly overrode a jury's life sentence recommendation. The court said it has been inconsistent in ordering new sentencing hearings or ordering a life sentence in these cases and it has decided that new hearings are pointless when they've already concluded that a life sentence is reasonable.

Thursday, 18 November 2010

Indiana state lawmakers say the General Assembly is more likely to try to find ways to help counties pay for death penalty cases than to abolish executions to save money.

“There aren’t a majority of votes in the Indiana legislature to impose either a moratorium or a revocation of the death penalty, so that’s not going to happen,” state Sen. John Broden, D-South Bend, a Judiciary Committee member, said Wednesday.

Broden said lawmakers need to look at how the state can help counties with the costs.

“In an era of declining revenues, we either need to come up with a way to fund future death penalty cases or take a look at other options. I guess everything is on the table right now,” he said.

The comments were in response to an assertion earlier in the week by Indiana Attorney General Greg Zoeller that lawmakers should look at whether the costs of death penalty cases are justifiable in tough economic times. A group that includes prosecutors and defense attorneys, professors, an Indiana Supreme Court justice and legislators discussed the issue Monday at the University of Notre Dame.

An analysis conducted earlier this year by the nonpartisan Legislative Services Agency found the average cost for trial and direct appeal in six capital cases averaged $449,887, not including the costs incurred by prosecutors or sheriffs. That compares with an average cost of $42,658 for seven trials in cases involving sentences of life without parole.

Indiana has executed 20 inmates since it reinstated the death penalty in 1977, and 11 more are awaiting execution.

Vanderburgh County Prosecutor Stan Levco said at the summit Monday that he believes Indiana’s death penalty system is “nearly broken” because it costs so much.

Attorney General Greg Zoeller used a legal summit to kick-start a statewide discussion of the financial burdens associated with the death penalty in Indiana.

He told 75 lawyers and law students at a University of Notre Dame event Monday that state lawmakers and policymakers should take a hard look at the costs and fiscal burden of capital punishment cases in Indiana.

But he did not call for a repeal of or moratorium on the death penalty. He also had no specific proposals.

Zoeller said the costs for a lengthy capital murder case can be exorbitant for a county government, including the costs of death penalty-qualified defense lawyers, expert witnesses, courthouse security and lodging for sequestered jurors.

And the costs to taxpayers continue to accumulate during the appeals process that can take 10 years or longer to play out. It cost more than $500,000 in defense costs alone to try a recent death penalty case in Warrick County, Zoeller spokesman Bryan Corbin said.

And at a time of shrinking revenue and when the judicial branch has little flexibility to cut budgets, Zoeller said legislators and policymakers should look carefully at cost structures driving the expense of death penalty cases at the trial and appellate levels.

“It is time that we in the criminal justice system have a candid conversation about the economic impact of capital punishment in Indiana,” he said. “I don’t claim to know the answers, but as the state government’s lawyer sworn to uphold the laws of Indiana, I hope we can trigger a frank discussion of these questions. We serve the crime victims and our constituents – the taxpayers – best if we confront a problem directly and objectively.”

Larry Landis, executive director of the Indiana Public Defenders Council, is quoted in this excerpt:

Indiana has the option of life without parole, putting defendants behind bars for the rest of their lives.

Asking for life without parole as a sentencing option gives prosecutors the opportunity to protect the public from predators and minimize the costs associated with death penalty appeals.

Even if prosecutors file a death penalty case only to withdraw it during plea negotiations, it already costs the counties money, Landis said.

“The meter is running the whole time, and you’re spending hundreds of thousands of dollars to get what you could have gotten with life without parole,” he said. “What we should be focused on, rather than it costs a lot of money, is that it’s an expenditure that is created when a prosecutor makes a choice to file a death penalty request. The best way to avoid the cost is don’t make that request.

“If you want to avoid the expense of a death penalty case, don’t file it. File it as a life-without-parole case, you get the same result, without all of the expense,” Landis said.

Tuesday, 16 November 2010

Indiana Attorney General Greg Zoeller says state lawmakers should take a look at whether the cost of death penalty cases are justifiable in these times of shrinking revenues.

Zoeller says the expenses involved in lengthy capital murder trial can be exorbitant, and costs continue to accumulate during long appeals. Speaking at a criminal justice summit at the University of Notre Dame, Zoeller also said that the appeals process gives condemned prisoners a daily purpose, while prolonging the agony of victim's families.

A meeting Monday will examine the high costs of the death penalty in Indiana.

The state attorney general's office organized a criminal justice summit at the University of Notre Dame to explore the issue. The office says death penalty cases are among the most expensive criminal cases to litigate in Indiana. A Rutgers University professor will present a study on the economics of the death penalty, and Indiana officials will describe the impact on government and offer suggestions.

With courts and the criminal justice system facing unprecedented funding burdens during the recession, Indiana Attorney General Greg Zoeller said policymakers should take a hard look at the costs and fiscal impact of capital punishment cases in Indiana.

Speaking today at the Criminal Justice Summit at the University of Notre Dame, Zoeller noted that the expenses involved in conducting a lengthy trial in a capital murder case can be exorbitant for a county government, including the costs of death-penalty-qualified defense lawyers, expert witnesses, courthouse security and lodging for sequestered jurors. And the costs to taxpayers continue to accumulate during the appeals process that can take 10 years or more to play out.

Public defenders represent the offender in seeking to overturn the conviction or death sentence in appellate courts, while the Attorney General's Office represents the State in seeking to prevent them from being overturned.

"Each day that the condemned prisoner's case is up on appeal gives some daily purpose to his existence. The years on death row must undoubtedly be filled with anxiety, and hopefully remorse. Meanwhile, the interminable delay prolongs the agony for the victim's family, leaving them in perpetual limbo and sometimes preventing them from completing the grieving process," Zoeller said in his remarks to the summit.

But at a time of shrinking revenues when the judicial branch has little flexibility to cut budgets, Zoeller said legislators and policymakers also should look carefully at cost structures driving the public expense of death penalty cases at the trial level and appellate level.

"So it is time that we in the criminal justice system have a candid conversation about the economic impact of capital punishment in Indiana," Zoeller added. "I don't claim to know the answers; but as state government's lawyer sworn to uphold the laws of Indiana, I hope we can trigger a frank discussion of these questions. We serve the crime victims and our constituents - the taxpayers - best if we confront a problem directly and objectively."

The Indiana Attorney General's Office, which conducts several educational and training events for the legal community each year, organized the Criminal Justice Summit today at the University of Notre Dame.

One panelist, economics professor Dr. Anne Morrison Piehl of Rutgers University, presented her recent academic study on the fiscal considerations of the death penalty in Indiana. She noted that the Indiana Public Defense Fund reimburses 50 percent of the defense costs from the trial phase of capital cases and prioritizes those reimbursements, leaving less funding potentially available to reimburse local costs for non-capital cases. Among her study's suggestions: Indiana could develop stricter limitations on reimbursement for trial expenses -- perhaps by limiting the number or type of expert witnesses or capping their fees - or develop more aggressive audit procedures after the fact.

Other panelists elaborated on death penalty costs and described the procedural safeguards built into the criminal justice system, including Indiana Supreme Court Associate Justice Frank Sullivan, Vanderburgh County Prosecutor Stan Levco, Clark County Prosecutor Steven Stewart, St. Joseph County Prosecutor Michael Dvorak and Indiana Prosecuting Attorneys Council Executive Director Stephen Johnson.

Monday, 08 February 2010

When a capital murder case goes to trial, the same old questions pop
up: Why does the trial take so long? Why so many appeals? Will the
sentence ever be carried out?

The recent trial of James Mammone III, who was sentenced to death last month, prompted similar comments.

The short answer to those questions: The rulebook is different when a defendant’s life is in the balance.

“You have to be so careful in a capital case ... everything you do in a
regular case you do 100 times more in a capital case,” Stark County
Common Pleas Judge Lee Sinclair said.

But a different rulebook can be an unfamiliar one, not just for the public, but also for judges.

For more than a decade, Sinclair and other local judges have educated
their colleagues around the state, and even across the country, on how
to navigate death-penalty cases.

Thirty-five states have the death penalty, but only a handful, such as
Ohio, California and Texas, offer regular training on the subject for
judges.

“Generally speaking, it’s the states that have a lot of death penalty
cases,” said Robin Wosje, director of grant projects and special
initiatives for the National Judicial College, a Reno-based training
center for judges.

Also, judges tend to be generalists, and when it comes to capital
cases, “you have to really have a few of these under your belt to be
comfortable,” Wosje said.

To better educate judges, the National Judicial College, with a grant
from the federal Bureau of Justice Assistance, offers courses on the
death penalty and has published a new book, “Presiding Over A Capital
Case, A Benchbook for Judges.”

Friday, 25 January 2008

The symposium will address a broad range of issues concerning lethal
injection. Some of these issues include: The purpose of punishment and
whether lethal injection adequately serves that purpose; the role of
doctors in executions; the relationship between state laws governing
the euthanasia of animals and the current lethal injection protocols in
those states; the role of the Eighth Amendment in addressing these
issues; the impact of the recent lethal injection litigation on
lawyers, judges, media and the public, and the impact of the litigation
on the death penalty debate as a whole.

The complete list of participants is here; an all-star lineup of the most informed scholars and journalists on lethal injection, including Fordham's own Deborah Denno. Federal District Judge Jeremy Fogel, who is presiding over the Morales lethal injection trial in California, is slated to be the keynote speaker.

As unhappy as he was about being on the losing side in so many cases
last term, Supreme Court Justice Stephen Breyer said Saturday his faith
in the legal system and the rule of law is undiminished.

"I had a difficult year," Breyer said before the opening
assembly of the American Bar Association's annual meeting in San
Francisco. "I was in dissent quite a lot, and I wasn't happy." With
Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. on the
Court, conservatives won almost all the 5-4 opinions last term, leaving
Breyer often in the minority.

Breyer noted that he wrote an impassioned 77-page dissent in June in
last term's school race cases, criticizing the majority for taking a
wrong turn on civil rights. After a summer of reflection, Breyer told
the association, "I wish I had won," but he said he also thinks, "not a
bad system."

The nation is one of "300 million people and 600 million opinions,"
Breyer added, and his can't be in the majority all the time. What makes
him still proud of the system is that disputes over race and other
deeply emotional issues are worked out "in the courts, not in the
streets."

Breyer made his personal observations to underscore his charge to the
lawyers to spread the word about judicial independence and the rule of
law. Even when the Court makes unpopular decisions, Breyer said, the
nation abides by them. Even in the Florida 2000 election case of Bush v. Gore, Breyer noted, "there were no paratroopers, no rocks. ... People accepted it."

But the story of the American legal system needs to be told and retold,
Breyer said, because it "floats on the sea of public acceptance." He
said he worries that the busy general public does not see that it has a
direct stake in the preservation of an independent judiciary, which
contributes to economic stability and the protection of minorities. The
message needs to be transmitted to the next generation, Breyer said.

The future of America's
judiciary as an independent institution depends on the public's
willingness to support courts that issue controversial or even
unpopular rulings, Supreme Court Justice Stephen Breyer told the American Bar Association on Saturday evening.

"This constitutional system floats on a sea of public
acceptance,'' the San Francisco native, a 1994 appointee of President
Bill Clinton, said in a keynote speech in Davies Symphony Hall at the
annual meeting of the 413,000-member lawyers' organization.

While judges must disregard public opinion in their rulings, Breyer said, "if the public in a democracy does not support that institution, then you don't have that independent judiciary.''

And:

When the Supreme Court ruled in the 1830s that the state of Georgia had no power to seize land from the Cherokees, Breyer
noted, President Andrew Jackson defied the ruling and ordered in
federal troops, ultimately sending the Indians on the Trail of Tears to
Oklahoma. But when the court unanimously ordered Arkansas in 1958 to
allow black children to attend all-white schools in Little Rock,
President Dwight Eisenhower sent in paratroopers who escorted the
youngsters past hostile crowds into the schoolhouse.

"That was a great day for law,'' Breyer said.

Also on Saturday, the State Bar of Texas hosted a reception. Current President Gib Walton and Immediate Past President Martha Dickie were both present. The ABA Individual Rights and Responsibilities Section's Thurgood Marshall dinner honored Judge Matthew J. Perry of South Carolina.

Thursday, 19 July 2007

Mark Smith and his colleagues at the Center for American and International Law will be hosting its second Annual Conference on Actual Innocence in Plano, August 15-17. Details are here. CLE credit has been approved.

The Center has been conducting excellent programming. On January 23, 2005, Fifth Circuit Court of Appeals Judge Patrick Higginbotham co-authored an OpEd in the Dallas Morning News praising the Center's work. Here's an excerpt:

The criminal justice system in Texas and how it deals with death penalty cases are under the microscope like no time in history.

During the past three years, the U.S. Supreme Court has reviewed seven capital cases from the Lone Star state. It reversed all seven. The justices' criticism has been directed at all three participants in the system – criminal defense lawyers, prosecutors and judges.

Isolated examples? Hardly.

The Supreme Court and the lower courts have overturned 165 Texas death penalty convictions or sentences since capital punishment was reinstated three decades ago.

The cases include instances in which defense attorneys slept through trial, came to court intoxicated, or did very little work on their clients' behalf. There are cases in which prosecutors withheld evidence or allowed witnesses to fabricate testimony. And there are cases in which judges misinterpreted the law, mishandled jury selection, or issued flawed jury instructions.

And:

Taking a giant first step, the Center for American and International Law, a nonprofit corporation that promotes continuing legal education, has created a series of 14 programs in 2005 to educate and train the three key critical players identified by the Supreme Court as needing to do a better job in capital cases.

Next week, more than 60 criminal defense lawyers from across Texas will gather at the center's new headquarters in Plano to learn the latest trial techniques and legal arguments in order to better represent defendants facing the death penalty. Texas trial judges will meet in the same rooms in the spring to be educated about recent developments and trends in death penalty law so that they properly handle a capital murder case. Prosecutors will follow the judges a few weeks later.

Monday, 07 May 2007

The Austin Lawyer Chapter of the American Constitution Society has scheduled a CLE program Thursday, May 17, featuring UT law profs Rob Owen and Jordan Steiker, who recently won three Texas death penalty cases in the U.S. Supreme Court.

The lunch time CLE will be at Thursday, May 17, 2007, at Habana Calle 6 (709 East 6th Street). Lunch will cost $13 / $8 for students. You can reserve a seat here.

The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.